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Research Questions

  1. What procedural mechanisms are available to resolve mass civil litigation in Australia, Brazil, Canada, Chile, Germany, the Netherlands, and the United States?
  2. What are the progress and outcomes of the VW litigation in these jurisdictions through June 2020?

As mass civil litigation has grown within legal jurisdictions, a new form of transnational mass litigation, which the authors term global litigation, has emerged. This litigation is characterized by parallel proceedings in multiple national jurisdictions, arising out of the same or similar factual circumstances. It typically targets the same or related multinational corporations but is brought on behalf of domestic plaintiffs, under different domestic substantive laws and applying different domestic legal procedures. The Volkswagen (VW) litigation over vehicles that were fitted with engine management software intended to mislead emission-monitoring regimes is a prime example of global litigation.

This report describes the VW litigation to illustrate the features of global litigation and the problems that arise in the resolution of these types of claims. The authors provide an overview of the procedural mechanisms that are available to resolve mass civil litigation in Australia, Brazil, Canada, Chile, Germany, the Netherlands, and the United States, countries that have well-developed representative or aggregate litigation procedures that judges, lawyers, and parties have relied on to resolve the massive number of claims that emerged against VW. The authors also provide an overview of the VW litigation in these jurisdictions through June 2020. In addition, they summarize key themes that arose during an April 2019 roundtable on global litigation sponsored by Stanford Law School, the RAND Institute for Civil Justice, and the RAND Kenneth R. Feinberg Center for Catastrophic Risk Management and Compensation.

Key Findings

  • The global mass VW litigation is not a "one-off."
  • On the surface, the VW litigation suggests that procedures for addressing global mass civil claims are converging.
  • On closer look, however, the VW litigation illustrates that national approaches to mass civil litigation continue to be quite distinctive.
  • Victims of the same event or wrongdoing in different countries seem increasingly to believe that they deserve the same compensation that victims in other countries have received, without regard to differences in substantive law or regulations.
  • The VW litigation teaches us that global litigation has the potential to affect not just the outcomes of parallel domestic lawsuits but the procedural rules and substantive law that shape this litigation.
  • Whatever the jurisdiction, when there are serious allegations of wrongdoing that affect large fractions of domestic populations, criminal and regulatory actions are likely to ensue.
  • Parallel litigation in domestic courts arising out of the same circumstances feeds desires for transnational information sharing.
  • In response to cost-shifting and lawyer fee rules, third-party funding has arisen as a near-essential ingredient to facilitate aggregate and collective litigation in many jurisdictions.
  • In the long run, global mass civil litigation is more likely to look like "U.S.-style" litigation than like traditional private litigation in civil law regimes.
  • It is too soon to design — much less implement — changes in the management or resolution of global litigation.

Research conducted by

The research described in this report was supported by the RAND Kenneth R. Feinberg Center for Catastrophic Risk Management and Compensation Advisory Board and conducted by the Justice Policy Program within RAND Social and Economic Well-Being.

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